write now: writing strategies that instantly elevate your ......after unceremoniously renouncing his...

Write Now: Writing Strategies that

Instantly Elevate Your Writing

Vicki Lowery

David McCarty

Mary Purvis

Good legal writing does not sound as

though it was written by a lawyer.

Good legal writing, in general, is

writing that keeps the readers’

interests foremost.

Most lawyers and judges read almost exclusively on a computer

screen. So we must:

• Summarize

• Give bearings

• Cut the clutter

Anything that sets the reader to skimming or skipping must go.

The “F-Pattern”

Legal readers are now “skimming” more than we’re

“studying.”

Screen reading is literally changing how we read

documents including appellate briefs.

Screen Reading

• Speak Human

• Lead From the Top

• Guide Your Readers

Three Guiding Principles

Plain English

If you would not use a word or phrase when

speaking with a colleague, don’t use it in your

writing.

Speak human.

Avoid Stuffy Language

Not this: Pursuant to our conversation. . . .

But this: As we discussed. . . .

Not this: Subsequent to. . . .

But this: After. . . .


Not this: With respect to, With regard to,

Regarding, Concerning

But this: On, About, For, As for


Not this: Therefore, Consequently, or

Accordingly

But this: So, Thus, or Then

Avoid Legal Clichés

Not this: In the instant case. . . .

But this: Here, . . . .

Or this: The jury, here, . . . .

Not this: Assuming arguendo

But this: Even if

Which One Is Better?

But v. However

And v. Furthermore

So v. Consequently

Under v. Pursuant to

Lead From the Top

If you tell your audience what’s important,

they’ll look for that information as they read.

When you present that information later,

they’ll seize on it and it will “click” quickly,

like a puzzle piece snapping into place.

Lead From the Top

• Lead a brief with your conclusion

• Lead a section with a substantive heading

• Lead a paragraph with a summary sentence

• Lead an email with a strong subject line

Lead From the Top

Your leads all function as transitions.

And they prime your readers about what to look for.

Guide Your Readers

Sane people don’t read briefs for pleasure.

They read briefs because they’re expected to.

In fact, they don’t “read” them so much as they

“use” them.

Guide Your Readers

They want to know what to do next and

your job is to tell them.

What are you asking the court to do?

How can the judges and clerks get there?

• Introduction

• Issue

Statements

• Facts

• Argument

Sharpening Our

Knives

Introductions

Grab the Readers’

Attention

Hello

Narrative Nonfiction

In 1995, a group of men burst into a house,

ordered the occupants to lie down on the floor,

and opened fire; five people were killed.

Petitioner was the only person brought to trial.

He was tried in Orleans Parish, Louisiana, a

jurisdiction whose district attorney's office has a

long and disturbing history of failing to produce

exculpatory evidence to criminal defendants.

Simple Hook

Both the district court and the court of

appeals held that the equal protection

component of the Fifth Amendment’s due

process clause was violated when the

federal government imposed $363,053 in

estate taxes on the estate of Thea

Spyer simply because she was married to a

woman (respondent Edith S.

Windsor), instead of a man.

Emotional Stakes

After unceremoniously renouncing his parental

rights to his unborn daughter—Baby Girl—in a

text message and making no effort to see Baby

Girl for months after she was born, Father stepped

in at the eleventh hour to block an adoption that

was lawful and in the “best interests” of Baby Girl.

Vivid Words & Images

Oklahoma intends to execute petitioners by injecting

them with large amounts of a paralytic drug and

potassium chloride. The paralytic drug produces a

chemical entombment, paralyzing and eventually

suffocating the person. Potassium chloride feels

like liquid fire as it courses through the veins; it

eventually stops the heart. Throughout this process,

the paralytic drug ensures that observers see no

evidence of suffering, because the prisoner will be

completely paralyzed.

Think Like a Screenwriter

• Grab the reader from the get-go.

• Convey your theme—in a few sentences—at the outset.

• Weave that theme throughout your brief.

• Once you grab the reader, do not let go.

Consider framing your issue statements in multiple

sentences (premise-premise-question) stated simply in

75 words or less.

The idea is to get your point across in 90 seconds or less.

Deep Issue Statements

Under Louisiana law, a husband is presumed to be the

father of his wife’s child and must support the child

unless he denies paternity within one year of the child’s

birth. Rousseve did not deny paternity until five years

after Aleigha’s birth. Was he obligated to support

Aleigha until he proved that he was not her father?

Sample Deep Issue Statement

Improves upon the traditional one-sentence issue

statement in two ways:

(1) it’s easier to read and follow because it presents the key

context before asking the question, and it divides a long-

winded single sentence into a few shorter sentences; and

(2) it’s more persuasive because it gives a bit more freedom

presenting the law and facts, and it contains a syllogism

that strongly suggests the desired answer.

Deep Issue Statement

Let Your Facts Show,

Not Tell

The facts in the brief should read like

narrative nonfiction, a bit like something you

would read in The Atlantic or The New Yorker.

Show, Not Tell

Although Baker died before the significance of

his observations became known, his faithful

traveling companion—an Irish Setter who often

flew shotgun—was immortalized by a geologist

who dubbed the creek Baker had spotted “Red

Dog” Creek.

Let Choice Details

Speak for Themselves

Why mention an Irish Setter?

What does a shotgun-flying dog have to do with

the Clean Air Act or administrative law?

Draft Facts That Speak

for Themselves

John Roberts is litigating a classic federalism fight

between the states and the federal government.

So he “shows” you why the Red Dog Mine plays a

vital economic role without “telling” you what to

think.

Show, Not Tell

Operating 365 days a year, 24 hours a day, the

Red Dog Mine is the largest private employer in

the Northwest Arctic Borough, an area roughly

the size of the State of Indiana with a population

of about 7,000. . . .

Cut the Clutter

The easiest way to improve a fact or

background statement is to prune it.

Cut Dates; Convey Time

Replace dates with phrases that convey a

sense of time:

• “Shortly after”

• “Some months before”

Cut the Clutter

What works for background facts also works

for procedural history.

Cut the Clutter

Avoid “in its response to the Motion” and

other long procedural descriptors.

Favor “responds”

Cut the Clutter

Cutting clutter isn’t just about saving

words.

It’s also about turning down the noise so the

signal shines through.

So, trim fat, clutter, and other distractions

from your prose.

Using Document Design and

Structure to Hold Your

Readers’ Attention

Trend in Brief Writing

Sounding less like a lawyer in documents

designed to be more readable.

Document Design: Butterick’s

Chart of Fonts Graded from A-F

A List: B List:

Book Antigua Calibri

Garamond Century

Constantia

Corbel

Segoe UI



C List: F List:

Cambria ArialCentury Gothic Bradley Hand ltc

Consolas Bookman Old StyleCourier New Comic SansGeorgia Freestyle ScriptLucidia Console French Script



C List: F List:

Lucidia GabriolaLucidia Console MistralLucidia Sans Unicode PapyrusPlantagenet Cherokee Tempus Sans ITCGeorgia Trebucket ITC

Verdana

Garner’s Advice on Formatting

HeadingsMain heading in large boldface.

Subhead in regular boldface. Notice that in this heading, as in

the ones below, the indent is “hanging”—the second line of text

doesn’t begin at the left margin. This enhances clarity.

Second-level subhead in boldface italic. Notice that the italicizing makes the heading a tad smaller even though the typeface specifications are otherwise the same.

Third-level subhead in italic. Rarely will you need this level, but it’s good to have it available.

Structure of the Argument

Track the Court’s likely questions, not the record and

caselaw.

Give Bearings

The architecture of your writing must be

overt.

Make the logical structure obvious and

intuitive.

Help readers work less; connect the dots for

them.

Give Bearings

• Use outlines (visual structure is critical).

• Use numbered lists and bullet points.

• Use white space effectively (white space helps

readers).

Use Headings

• Use highly informative headings, preferably

full sentences that amount to succinct

propositions.

• You need headings, or bold assertions,

typically every one to three pages.

Use Headings

• Nest your headings and subheadings

(Russian Doll)

• Argue in the alternative

Use Umbrella Paragraphs

Include an umbrella paragraph before your

headings and subheadings.

Show the court a trailer.

Set the stage for the subheadings that follow.

Generate Your Structure

1. In each heading, offer a substantive reason

to do what your client is asking the Court to

do. Make headings persuasive.

2. In the first sentence of each paragraph

answer questions you expect the Court to need answered.

Generate Your Structure

3. Within each paragraph, explain how each

authority proves the first sentence true.

4. Between sentences, include transition

words and phrases to show how each

authority proves your point differently from

the others.

For the opening paragraph in a section (following a

heading or subheading), echo the heading or

subheading without heavy-handedly repeating it. Be

artful here.

Remember that your paragraph must be self-

contained, without reference to the heading or

subheading.

Bridge the Gap: Linking

Headings and Topic Sentences

Readers crave smooth transitions between

paragraphs.

Otherwise, it’s hard to know how the first

sentence of a new paragraph connects to

what came before.


Paragraphs

Use a “kicker sentence” to set up a series of points

that you will elaborate on in the following

paragraphs.


Paragraphs

Connect the end of one paragraph to the

beginning of the next to maintain narrative flow.

Specifically, embed a transitional word in each

topic sentence (beginning with the second

paragraph of a section).


Paragraphs

Pointing words (this, that, these, those) because they

point to something immediately preceding.

Echo links which are words that repeat an idea in

summary language or otherwise reverberate from

what has just preceded.

Explicit connectives (by contrast, finally, further, in sum, likewise, etc.) which are obvious transitional

words.

3 Options for Creating Bridges:

Use all three devices to establish continuity from

paragraph to paragraph.

Study the use of transitional words in first-rate

nonfiction (the Atlantic, the New Yorker, the

Economist)..

3 Options for Creating Bridges:

Lay your foundation for bridging by reinforcing the

main idea in the last sentence of a paragraph,

setting up the topic sentence of the next to

highlight the connection between the two.

Creating Bridges

Read the last and first sentences of successive

paragraphs to see whether they join smoothly. If

not, consider whether you’ve omitted some part of

your argument.

Creating Bridges

• Use verbal markers to guide your readers through the

unfolding of ideas.

• Introduce lists of points or ideas explicitly before

enumerating.

• Never allow yourself to quote words that you haven’t

properly introduced.

Additional Tips for Smoothing Out

the Narrative Within Paragraphs

• Whenever possible, keep your subject and verb close

together; try putting any modifying phrases at the

beginning of the sentence.

Not this: Smith, in his motion, claims. . . .

But this: In his motion, Smith claims. . . .



• Avoid throat-clearing language, e.g, It is important

to note that. . . .

• Use short sentences, plain words, active voice, and

specific rather than general terms to make your

writing sound more natural.



• Break up long, complex sentences.

• Even if your arguments are technical or complex, your

sentences never should be. The more complex the

ideas, the simpler the sentences conveying them

should be.

• Vary the length of your sentences while aiming for an

average of 17-20 words per sentence.



Every sentence should related directly to the ones

next to it.

Avoid “bumps” or unheralded shifts in the narrative.

If you’re darting off in a new direction, you’ll create a

“bump” unless you include a contrasting connective—

usually a word such as but, even so, or yet.

Creating Connections at the

Sentence Level

• Phrases that Pay: Key Terms of the Rule

• Strategic Use of Repetition

Making Key Points Stick

Phrases-That-Pay

If your argument is based in whole or in part on

well-established statutory or common law rules, you

can structure your argument by looking for each

rule’s “key terms.”

Phrases-That-Pay

By focusing on one phrase-that-pays within each

subsection, you ensure that you’re focusing on

one issue or sub-issue at a time.

Phrase-That-Pays:

In Plain View

IF a person exposes activities to the plain view of

outsiders, THEN those activities are not protected

against observation by the Fourth Amendment’s

search and search limitations.

Build a bridge between paragraphs by

repeating or recasting a key term from the

end of the first.

Repeating key words or phrases connects two

points in the readers’ minds.

Another effective bridging technique is

simply to list reasons that the last thing you

wrote is true.

Strategic Use of Repetition

Strategic use of

repetition of key facts

and legal concepts

throughout a brief

help bind together

stories and legal

criteria.

Add Speed

• Start sentences with short, punchy words;

• Use short and varied transitions; and

• Vary the “signposts” that help the readers track the

brief ’s logic.

Add Speed

Most lawyers stick to the 8 or so tried-and-

true transition words: consequently, moreover.

These heavy-handed transitions become a

crutch that communicates little to the

reader other than that another point is on

the way.

Add Speed

But a great advocate might use 50 or more light

connectors.

Ross Guberman offers a comprehensive list of 100-

plus transition words and phrases.

These signposts are arranged according to the

goal for the sentence.

Add Speed

But the EPA cannot claim that ADEC’s

decision was “unreasoned.” Nor can the EPA

assert that. . . . How to control emissions

within those standards, without exceeding

available increments, was for the State to

decide.

Add Speed

At bottom Say

Under that approach And so

By extension In any event

To this end Instead

Because Thus

Indeed As in

Add Speed

Spice Up Your Prose

Spice Up Your Prose

• Zinger Verbs

• Visual Images

• Figures of Speech

• Cultural References

Zingers: Evocative Verbs

Choice verbs enliven your prose, painting

pictures in the reader’s mind that animate your

legal analysis.

Bryan Garner offers 100-plus picturesque verbs.

Ross Guberman shares 50 zinger verbs.

Noah Messing lists about 200 trim verbs.

Zingers

The elected governments of the States are actively

confronting the challenges DNA technology poses to

our criminal justice systems and our traditional

notions of finality, as well as the opportunities it

affords. To suddenly constitutionalize this area

would short-circuit what looks to be a prompt and

considered legislative response.

Zingers

“Short-circuit” conjures up sparks,

malfunctions, destruction: the very sorts of

images the Chief wants you to see.

Visual Images

“Wherever possible, use pictures, maps, diagrams,

and other visual aids in your briefs. Some lawyers

seem to think a word is worth a thousand

pictures. The reverse, of course, is true. Seeing a

case makes it come alive to judges.”

Hon. Richard A. Posner, Effective Appellate Brief Writing, LITIGATION NEWS, available at

http://apps.americanbar..org/litigation/litigationnews/trial_skills/appellate-brief-writing-posner.html (last visited

July 27, 2012).

Metaphors and Analogies

Justice Scalia’s line of

questioning at oral

argument highlighted an

analogy popular among

conservative pundits:

comparing the individual

mandate to the federal

government forcing people

to purchase broccoli.

The “Perfect” Analogy?

Metaphors and Analogies

Justice Roberts and Bob Dylan

“The absence of any right to the substantive recovery

means that the respondents cannot benefit from the

judgment they seek and thus lack Article III standing.

‘When you got nothing, you got nothing to lose.’”

“You Don’t Mess Around with Jim!”

Eleventh Circuit Judge Carnes opened a recent opinion with: “In one of his ballads, Jim Croce warned that there are four things you just don’t do: ‘You don’t tug on Superman’s cape/ You don’t spit into the wind/ You don’t pull the mask off that old Lone Ranger/ And you don’t mess around with Jim.’ He could have added a fifth warning to that list: ‘And you don’t let a pistol-packing mother catch you naked in her daughter’s closet.’”

Cultural References

Find creative ways to link the law to the

treasure trove of shared general culture.

• Song lyrics

• Proverbs

• Idioms

• Literary Allusions

Cultural References

“Thus, in bankruptcy, as in life, the more

money we come across, the more problems

we see.”

Notorious B.I.G. Mo Money Mo Problems on Life after Death (Bad Boy) Arista 1997.

Cultural References

• Google is a metaphor for effective legal

writing.

• Strive to create briefs that address

complex legal issues, yet are simple and

useful.

• Think of your work as more creative and

inventive.

Google = Legal Writing

THE ART OF LEGAL WRITING: MEN WALK ON MOON

Strong Written Advocacy for the Busy Professional

The action of respondents in excluding minor

petitioners from admission to Sousa Junior

High School solely because of race or color and

in refusing to permit adult petitioners to enroll

their children in Sousa Junior High School

solely because of race or color deprives

petitioners of their liberty and property without

due process of law in contravention of the Fifth

Amendment of the Constitution of the United

States.

write now: writing strategies that instantly elevate your ......after unceremoniously renouncing his...

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